Our Treaty: What Can the Treaty Of Waitangi Mean Today?

I was appalled by the proposal that the government should ban the teaching of the Treaty of Waitangi. Repressing bits of disapproved history is the practice of despotic regimes, not of liberal democracies.

Although the Treaty may be divisive today, hiding from the dissension will not resolve it. History, if we teach it, reminds us that although 19th-century Europeans ignored the Treaty, discussion continued on the marae. Today we are confronted with the breaches that occurred during the years of neglect.

How are we thinking about the Treaty? It evolves, just as it has in the past. Its Third Article extends the rights and privileges of British subjects to Maori. In 1840, women did not have the vote. It would be plain stupid to stop Maori women voting on this basis.

Eminent jurist Ronald Dworkin likens the evolution of law to each generation adding chapters to a novel. They can write what they like, providing they do not contradict what is in earlier chapters. Similarly, we can update how we apply the Treaty, providing it is consistent with the past.

Article Three does not present a problem. It is easy to extend it to all the rights that apply today, be they “British” or international law or whatever.

Nor is Article One a problem. The government of the country was ceded to Queen Victoria and her successors. Not only does that establish a basis for government in New Zealand, but also it allows considerable freedom as to what it may be, providing it develops in a proper way from an earlier regime (just as a story does). Under the First Article provisions of the Treaty, New Zealand can become a republic, should we want, if it occurs as a part of constitutional evolution.

It is the Second Article – about ranga-tiratanga or property rights – that causes the division. The public debate, from most sides, implies that Article Two applies exclusively to Maori. That is literally true, but it does not make the article racist. The article says that Maori and their successors have certain rights. So, too, do individuals and families. If the government breaches them, as when it unjustly seizes anyone’s family property, there is a grievance for generations to come until it is remedied. That is what the Waitangi Tribunal process is about.

But the Second Article need not, as some liberals seem to feel, just create an obligation to be nice to Maori. Without undermining the specific 1840 intent, the article can be extended to include everyone. For if it is saying that, in 1840, the government should not unjustly seize Maori property, it must also be saying that the government should not unjustly seize anyone else’s private property, either. Not to thus extend it would be racist.

The principle is not peculiar to the Treaty. MP Shane Jones recently reminded us that the Magna Carta (aka “Te Tiriti o Runymede”) says, “If we [ie, King John] have deprived or dispossessed any Welshmen of lands, liberties, or anything else in England or in Wales, without the lawful judgment of their equals, these are at once to be returned to them …” Whichever version, the principle of the integrity of private property rights makes good sense. The stability that it gives is a cornerstone of economic progress. Our European forebears regrettably often ignored the principle when it came to Maori property. Remedying the mistakes of the past is not only correcting the injustices, but reaffirming the integrity of private property.

Some Maori argue that the “rangatira-tanga” of the Second Article refers to the wider notion of autonomy (of which property rights are only a part). I do not always agree with their proposals for its implementation, but the principle that private organisations (and individuals) have the maximum practical independence from the state is called “subsidiarity” by European theorists. The iwi are such organisations: so is the local bowling club. From this perspective, the Second Article is about decentralisation: again a central principle of a liberal democracy.

We can elaborate the Treaty so that every article applies to all of us, and underpins a liberal democracy. Better that than the censorship of the authoritarian state.